On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, FO-15-321-06 and FV-15-595-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2006
Before Judges Coburn and R. B. Coleman.
In this matter, appellant Gregory J. Baranyay appeals from a February 22, 2006 consent order wherein he agreed to forfeit certain weapons seized by the Lacey Township Police Department; agreed to sell his firearms and other weapons to a licensed firearms dealer; and agreed to surrender his New Jersey Firearms Purchaser Identification Card (FPIC). For the reasons that follow, we remand this matter for further proceedings with regard to the FPIC. In all other respects, the February 22, 2006 order is affirmed.
On September 16, 2005, Doris Baranyay, wife of appellant, and Amanda Baranyay, daughter of appellant, each obtained a temporary restraining order (TRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, that, among other things, prohibited appellant from possessing any and all firearms or other weapons, permits and firearms purchaser ID cards. Appellant was ordered to surrender same immediately, and the officers from the Lacey Township Police Department, who served the TRO upon appellant, were authorized to seize any rifles, shotguns and knives in appellant's possession and to give a receipt for the property seized. N.J.S.A. 2C:25-21d(1)(b). On September 22, 2005, the date scheduled for the final hearing on the domestic violence complaint, the court determined that the allegations of domestic violence made by appellant's wife were not substantiated and the TRO entered on her complaint was vacated. That same date the TRO obtained by the daughter was dismissed at her request.
The weapons that had been seized were delivered to the Ocean County Prosecutor's Office, N.J.S.A. 2C:25-21d(2), and on December 19, 2005, following a conference to determine whether those weapons were to be forfeited, returned, or otherwise disposed of, a hearing date was set for February 22, 2006. On that date, the parties again conferred and defendant, acting pro se, consented to the sale of the firearms and weapons and to the surrender of a .38 caliber handgun and his FPIC, which he had retained in contravention of the TROs. Appellant acknowledged, both orally before the court and in writing, his consent to the surrender of the weapons and FPIC. Appellant, nevertheless, seeks now to appeal the consent order.
Appellant argues that his consent to the order of forfeiture was not knowing, intelligent, or voluntary under the circumstances; that there were no grounds to forfeit his weapons; and that he was denied his right under the Sixth Amendment of the Federal Constitution to effective assistance of counsel. The State responds that appellant knowingly consented to have his property sold or destroyed, but it concedes that appellant may not have knowingly forfeited his right to own or possess firearms in the future.
Ordinarily, a consent order entered into by the parties is not appealable for the purpose of challenging its substantive provisions. O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 602 (App. Div.), certif. denied, 169 N.J. 606 (2001); Pressler, Current N.J. Court Rules, comment 2.2.3 on R. 2:2-3 (2007). However, where, as here, the facts and circumstances give rise to a serious question as to whether the apparent consent was knowingly given or was a result of an inadvertent or uninformed assent, the propriety of the substantive relief should be more clearly examined.
The applicable provisions of the Prevention of Domestic Violence Act contemplate that seized weapons may or may not be returned to the owner. In that regard, N.J.S.A. 2C:25-21d(3), in pertinent part, provides:
Weapons seized in accordance with the "Prevention of Domestic Violence Act of 1991", . . . shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.
A hearing shall be held and a record made thereof within 45 days of the notice provided above. No formal pleading and no filing fee shall be required as a preliminary to such hearing. The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.
If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall ...